Leasehold and Freehold Reform Bill

Debate between Lord Berkeley and Earl of Lytton

Committee stage
Wednesday 24th April 2024 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, I am very pleased to be able to speak to this amendment and very grateful to the right reverend Prelate for tabling it. His office asked me whether I would add my name, and I am afraid I neglected to do so. Implicit in what the right reverend Prelate and the noble Lord, Lord Moylan, said is that we have within the Bill a carve-out for the National Trust as a charity that does not apply to other charities. My understanding, and I think noble Lords will know the principle, is that this touches on and concerns the question of hybridity of a Bill. That is dangerous territory for somebody who is a non-lawyer, but none the less I raise the question, because public Bills should apply equally to all citizens and entities. If you single out one, you have to face the consequences of having a hybrid Bill.

I scanned around earlier to see how many legal minds there might be sitting around the Chamber, because I am not one and I stand to be shot down, not being a lawyer, but the matter did crop up on the levelling-up Bill and I had reason to look into that in some detail, although it was not debated in the Chamber. So I hope I am reasonably up to date in believing that the only workaround here is if the entity singled out in the legislation is what is known in the jargon of the legislator as “a class of one”. I have seen the letter dated 22 April to the right reverend Prelate from the Minister. She appears to allude to the uniqueness of the National Trust in that its lands are inalienable. I looked at the world wide web at lunchtime to see just how inalienable things actually are, because as I will explain, I am not sure that is necessarily a correct point on which to rest the case.

What I discovered, among other things, was “Battle over National Trust sale to developer”, which was a question of three acres of a meadow near Bovey Tracey in Devon in 2021. There was another freehold property on the market, and I think it was described as being a former National Trust property. I therefore assume that the National Trust is doing what other charities normally do—namely, that it gets property bequeathed to it, or it acquires property by public subscription, and that may contain bits that it wants and considers rightly inalienable, and other bits that it considers expendable. Any charitable organisation having property is required by the Charity Commissioners to make best use of its assets, and that means not having bits of deadwood floating around. It has to be organised, and that happens in any management process. So to what extent inalienability cuts into this, I am absolutely not sure.

[Lord Berkeley (Lab)]

I am grateful to the noble Lord for giving way. Can he explain what the word “inalienable” actually means?

[The Earl of Lytton (CB)]

I believe it means that it cannot be disposed of away from the purposes of the charity. I am not a lawyer and I am afraid I do not know exactly, but I understood it to be the term contained in the Minister’s letter to the right reverend Prelate, which is why I used it.

I want to make it clear that the organisation of a charity is necessarily of a commercial nature but devoted, ultimately, to its charitable purposes. It cannot be otherwise; it must use its assets optimally, and it is required to do so. I can see no discernible difference between something like the National Trust and an organisation such as the Church of England. Any such charity acquires, disposes and otherwise deals with its land assets as a matter of course. It is required to do so if it is disposing according to a set of rules, with which I am familiar, under the Charity Commission: CC 28, which state that you have to get best value for the asset, or words to that effect.

I am concerned about the potential hybridity aspect of the Bill, to which the right reverend Prelate did not refer, but it is implicit in what he is asking. It is a question that needs to be raised and is a procedural one for this House. I would very much like to know the answer, and if the Minister, who has not had any warning, cannot give it today perhaps she would be kind enough to write and copy in other noble Lords who are listening.

Levelling-up and Regeneration Bill

Debate between Lord Berkeley and Earl of Lytton

Committee stage
Thursday 20th April 2023 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Hodgson of Astley Abbotts. My concern is to do with not the specific examples referred to, but that we seem to be in a situation where we are asked to confer an unconstrained power in relation to an undefined objective. The undefined objective is “national importance”, and I have not been able to find a definition of what that might be. I suppose you would say that I might ask from these Benches: is the national importance clearly distinguishable from the political aspirations of the Government of the day? Is it something different? I would want to know because I would not want to confer a power without having a very clear sense of purpose.

We turn to the matter of “urgency”—not emergency, I stress, but urgency. We need to understand what that amounts to. It may be irksome to Governments of the day—the more centralist and command economy-type the thinking, the more irksome it becomes—to go through hoops to do with projects that involve Crown land. But it is the price of democracy, and the price of the maintenance of the rule of law and the continuation of what might be regarded as the rules-based system. That demands a degree of consistent approach. Without having some definitions in the Bill, it is difficult to see how there could be any consistent approach here, as opposed to one based on whim.

Some of the examples that the noble Baroness, Lady Hayman, produced in her excellent introduction made it look like Government gaming the system, and that worries me very greatly because it is not just the Government that may be here today, but one tomorrow or in future years, and perhaps—who knows?—one that is more extreme of right or left; I say not which. I get back to the rules-based system. Are we in that environment or are we getting into the area where anything goes?

I mention the following because I do not want it to be used as the lever by the Minister when he comes to reply. Wrapped up in the middle of page 123 of the Bill, in new Section 293B(11), is the provision for matters of national security and public disclosure that would be

“contrary to the national interest”.

I get that, and I do not have any principled objection to it, subject to adequate definitions and safeguards. I want to know how “national importance” and “national interest” interface for a start.

Going over the page in the Bill, page 124 states, in new Section 293C(3), that:

“A development order may make provision as to the consultation”—


“may”, but does not have to. That cannot be an entirely optional extra at the whim of whichever Secretary of State happens to be in power at the time. Still on page 124, new subsection (8) states:

“The following provisions do not apply for the purposes of determining an application … sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act”.


Section 66(1) is in relation to the desirability of conserving and protecting listed buildings, and Section 72(1) is effectively the same but for conservation areas. But when the Bill says:

“The following provisions do not apply”,


they clearly do not apply to anybody, not even the Secretary of State. The Secretary of State is, in other measures, asking the general citizenry to comply with precisely the same burdens that they decide, on a whim, that they are going to relieve themselves of. I am behind the noble Baroness, Lady Hayman, because this is just not good enough.

[Lord Berkeley (Lab)]

My Lords, I rise briefly to support my noble friend Lady Hayman, who performed an excellent destruction of this clause. Other noble Lords have said much the same thing. I have one question for the Minister, because this is all about the Crown, but I cannot see any definition in the clause of who “the Crown” is. There are other definitions in other parts of the Bill, which include the Duchy of Cornwall, which I shall come on to in the next amendment, the Duchy of Lancaster, and the Crown Estate. It makes me think that what we are really trying to do is to go back to a time when we had “the Crown” in the shape of Henry VIII, who could do more or less what he wanted. This seems a very good start to the Government’s plan to give Henry VIII, in the shape of whoever is in charge at the time, carte blanche to do what they want.

Leasehold Reform (Ground Rent) Bill [HL]

Debate between Lord Berkeley and Earl of Lytton

Report stage
Tuesday 20th July 2021 Lords Chamber

[Lord Berkeley (Lab)]

My Lords, I support the amendments in this group and I am grateful to the Minister for finding the time to have a meeting with me. It was very helpful.

I shall come on to another amendment I have later. For this group, the noble and learned Lord, Lord Mackay, mentioned the need to speed things up. I entirely support that. We should get the rest of the Law Commission’s report on the statute book as quickly as possible. The noble and learned Lord’s amendment and that from my noble friend Lord Lennie are fundamental in trying to, shall we say, stem the tide of very unfair practices that seem to have developed in some parts of the market. I do not know how widespread it is, and I am quite surprised that the CMA has not been more helpful because its role, after all, is to look after the interests of consumers. Sometimes I feel that it possibly does not do that, but we can discuss that another time.

I have the pleasure of being on your Lordships’ Built Environment Committee that has just started one inquiry—out of two—into housing. At our meeting this morning, I was struck by three of the witnesses all saying that security of tenure was one of the biggest problems in housing. Whether it is leasehold or rental, it does not really matter very much. It is important to understand that people need to have some comfort that they can continue to live where they are living if they want to, and that the amount that they pay cannot go shooting up because of the wishes of the owners or other people involved in a way that could not have been foreseen when they took out the lease. It is not good when people are locked in—there are many press comments about it—and cannot sell. What do they do? That is before you get into the problem of cladding, which again is outside this discussion.

I am not sure whether my noble friend’s amendment or that of the noble and learned Lord is the best one. They both try to find some way of providing financial comfort to those who have been caught in this sudden upsurge—to me anyway—of increasing ground rents or other similar charges.

When we do these stages, it is funny that the Minister answers before the amendment has actually been proposed—but that is another thing we will get to. I look forward to my noble friend speaking on this matter, as he is much more knowledgeable than I am on it. I shall also be very interested to hear what the Minister has to say. It is really important that something like this is done very quickly, long before the next stage of the Law Commission’s report becomes a Bill.

[The Earl of Lytton (CB) [V]]

My Lords, I am largely supportive of this group of amendments, particularly the one moved by the noble and learned Lord, Lord Mackay of Clashfern. It always seemed to me that some of these clauses, particularly relating to escalating ground rents, were unfair, with hidden implications that were not apparent to purchasers at the time when they were entered into. The CMA intervention is welcome but the ongoing blight continues. This is certainly an evil that causes me to support this amendment very much.

I also support Amendment 9. This seems to be a logical provision against pre-emption and creates, as I see it, greater transparency, which really should be the hallmark of landlord/tenant relationships in this area.

It is unfortunate perhaps that I am speaking before Amendment 26 has been spoken to. I see it as potentially retroactive, and think it might remove the value of an asset without fair compensation. In its specific scope, it would not distinguish between a fair and reasonable ground rent and one that was flagrantly unfair. I do not in any way defend leasehold interests as such, but if we go down this road it has much wider public interest and property law implications.

Again with Amendment 30, I would have liked to have spoken after the noble Lord, Lord Stunell, whom I believe will speak to it, but, from a technical standpoint, the question of rent is a payment that in this instance the tenant makes to the landlord for the bits of the property which exist but which are not within the tenant’s specific demise under their leasehold. It is not a service charge. Are we at risk of getting rent and services provided for rent confused—in other words, the use of property as opposed to a tangible benefit in terms of the service charge? In general, however, subject to those points, I support this group of amendments.

High Speed Rail (West Midlands–Crewe) Bill

Debate between Lord Berkeley and Earl of Lytton

Tuesday 8th December 2020 Lords Chamber

[The Earl of Lytton (CB) [V]]

My Lords, in moving Amendment 16, I will speak also to Amendment 17, both relating to party-wall procedures. I thank the Minister and the Bill team for hearing me out on this quite narrow issue and for convening several online meetings. I also thank the noble Lord, Lord Berkeley, and a number of external experts in this specialist field for their advice and support. I remind noble Lords of my own professional involvement in party-wall matters. I hope the Minister will be able to suggest something here, and therefore I trust that it will not be necessary for me to press these amendments.

I proceed by making an apology. In Grand Committee the Minister asked about the numerical incidence of cases in phase 2a that might be subject to party-wall procedures. The estimate of numbers that I provided informally to her was produced by someone else and is probably a mistaken figure, so I confess that I am no further forward. However, I have put out further inquiries and will let her know what the situation is. Of course, cases relating to party-wall procedures under the existing phase 1 are only now beginning to trickle in, so there is a long time lag between setting the Act in motion and cases emerging.

I will summarise for the record the current situation, as follows. First, the Minister told us that Schedule 23 to Bill as drafted, while removing key sections of the Party Wall etc. Act 1996—which I will refer to as “the 1996 Act”—for HS2 purposes, would none the less leave the main elements of the 1996 Act procedures intact. I must beg to disagree. If the claim to entitlements under the 1996 Act is not formally notified, it is incapable of agreement or dissent and there is no default to the dispute procedures or a party-wall award, so the entire rationale and balance of a process that impinges on common-law rights is thereby lost.

Secondly, the Minister suggested that for HS2 arbitration would be simpler and quicker than the 1996 Act dispute procedure, which she claims would delay HS2. I have to say that in all my years of practice I have never heard such a claim, even less seen substantive evidence supporting it.

Thirdly, the Minister averred that Schedule 2 to the Bill provides an adequate replacement for Section 6 of the 1996 Act—the bit relating to adjacent excavation—which is otherwise disapplied by Schedule 23 to the Bill. Replacement in part I can acknowledge, but I have to point out that it is on distinctly less than equal terms. I point in particular to changes in which consent, if a notice is not responded to, is deemed to have been given, instead of the 1996 Act protection of deemed dissent.

Safeguarding adjoining property and the notification of that is, it seems, the sole option of a nominated undertaker—which I will refer to as the NU—whereas this would be challengeable and potentially liable to counternotice under the 1996 Act. To explain further, safeguarding practices may be followed where risks to adjacent buildings arise from HS2 works, but based on internal assessment by the NU in which up to 10 millimetres of building movement is considered acceptable. However, in combination with natural subsoil shifts, this may well be mutually exacerbated and is therefore of considerable significance to owners of nearby buildings even if unimportant in engineering terms.

Fourthly, the Minister stated in Grand Committee that the NU would have to get agreement before commencing work falling under Schedules 2 and 23. However, there is no apparent mechanism for that in the Bill.

Neither external experts nor I agree entirely with the Minister’s analysis, but we do agree on some things: namely, that identical measures already exist in the phase 1 Act, that they were not challenged at the time, and that there was no consultation with expert practitioners on them. I suggest that practitioners were accordingly largely unaware of the proposals. In any event, accepting that phase 1 provisions exist does not make the risks go away.

I submit that for HS2 purposes the 1996 Act process does not remain intact; the essential balances of powers and responsibilities, of investigation and brokering of practical outcomes, cease to exist in the HS2 world. In the 1996 Act, it is a combination of the defining notice, a response and a challenge, followed by an award that gives rise to the rights—not a simple statement in Section 2 of the 1996 Act. The 1996 Act provides that the person proposing works meets the reasonable costs of the neighbour. This follows the obligation to make good any loss or damage occasioned. I am not clear what happens under the Bill, as notice under the 1996 Act customarily sets a clock ticking on costs and expenses. The removal of the requirement for notice, or perhaps a predilection for leaving notice under Schedule 2 to the last moment, might well mean that a prudent neighbour could themselves potentially incur an irrecoverable cost in obtaining advice on physical aspects, possibly before the NU had started to engage.

Of course I accept that we cannot have neighbours running up needless costs for reimbursement or, worse, undermining or destroying essential HS2 works. But this is a far cry from disapplying the provisions for everything that HS2 Ltd may happen to own or control and removing established protections. Hollowing out the 1996 Act and cherry picking the bits that suit HS2 is, of itself, questionable.

I do not see the Bill’s arbitration solution covering anything like the same process as the 1996 Act, in which surveyors negotiate the outcome based on a broad investigative process. Arbitration, after all, is a quasi-judicial process of a scope that needs to be defined. It used to be relatively cheap and quick, but a common criticism now is that it has become legalistic, expensive and slow, and so, I suggest, a good deal less flexible than party wall procedures. I think there will be arguments over the scope of arbitration.

It is clear to me that the Bill, by virtue of Schedules 2 and 23, and for HS2 purposes, does a great deal more than harmlessly disapply parts of the 1996 Act. It is a profound change of procedure and balance and will make the Act scarcely recognisable to most practitioners, especially when the customary consensual process is replaced with an essentially an adversarial one in which previous precedents are not a given. In short, it will require a significant realignment of skills and is likely to involve greater legal input. Awards of the type that occur under 1996 Act will not apply, and the intervention of the courts seems more likely. However, I accept that the bird has largely flown here. It is apparent that the Government will not accept any material changes to the Bill in respect of this matter. Fortunately, it is limited to HS2, but it makes for a bad precedent.

In discussions with the Bill team, the desirability of guidance was raised. I see three justifications for this: first, as a guide to professionals, given an unusual procedure and a significant departure from current established practice; secondly, as an indication of what an adjoining owner can expect; and, thirdly, as a means of fostering good order, cost control and consistent administration.

In the hope that there might be a partial solution in this direction, I took the liberty of asking the Royal Institution of Chartered Surveyors, of which I am a fellow, if it would be prepared to set up a working group, as consultee. I am glad to say that it has agreed to do so if the principle is agreed. I hope this will be welcomed. I have already flagged 14 initial points of my own which I believe any guidance should cover.

I now turn to Amendment 16. I recognise the implications of amending the Bill and the potential practical outcomes for the phase 1 Act of so doing, although of course phase 1 represents the greatest likelihood of issues arising because of the urban nature of some of its route, but future phases of HS2 might also benefit from sorting things out now. However, I believe that there ought to be a statutory hook for any guidance, and that is why Amendment 16 is so framed. The purpose will, I think, be entirely clear—namely, to put on the face of the Bill the requirement for guidance, to identify the means of parliamentary scrutiny and, lest it be forgotten or overlooked, to establish a clear timeframe for its coming into force.

Amendment 17, which I shall speak to extremely briefly, is the fallback. If nothing is agreed, this is “exit without a deal”. It would leave the 1996 Act provisions largely intact, but I accept that it is far from a perfect fit in the Bill simply to disapply Schedule 23.

Therefore, I invite the Minister to confirm what is intended. If she cannot agree to Amendment 16, might she commit to bringing forward a government amendment at Third Reading or, if not, to guidance?

Finally, on an allied matter, I remind the Minister of the query that I raised earlier about the form and final repository for long-term liabilities and obligations arising from works in, adjacent to or beneath neighbouring properties. HS2 Ltd is a delivery vehicle and, I assume, will at some point cease to exist. Can she indicate where long-term legal responsibility will lie and how it will be enforced? I appreciate that she may need to write to me on this subsequently, but it is an important matter, whatever agreements or arbitration awards are reached. I look forward to her reply. I beg to move.

[Lord Berkeley (Lab) [V]]

My Lords, I am pleased to be able to support the noble Earl, Lord Lytton, on these two amendments. We had some useful discussion in Committee, and I know that the Minister and her officials have been working very hard on seeing what the problems are and what the best solution is. Amendment 16 is certainly a way forward, because the status quo is, unfortunately, very unsatisfactory.

One problem, which the noble Earl, Lord Lytton, alluded to, is that party wall issues come only well after the legislation is completed. We are now beginning to see some problems with phase 1. It will be a long time before we see similar problems, although of a smaller scale, with phase 2, but I hope that we can really move forward on this. The RICS and the noble Earl, Lord Lytton, have offered to take this forward, with the hope of creating some statutory guidance, but, if not, there needs to be some other means of ensuring that there is fair play without the project being delayed. I think we all agree that this should not be a way of delaying the project; it should be a way of getting party wall issues resolved quickly and cheaply to everybody’s satisfaction. As the noble Earl said, if we do not get it right, the prospect of litigation and even class actions, with knock-on effects for the cost of HS2, would be very real, and I am sure the Minister will agree that we do not want that.

It is clearly the Government’s view that Schedule 2 to the Bill would be an alternative way of dealing with access to carry out investigations and notifying owners, particularly before carrying out safeguarding works, given the disapplication, by Schedule 23 to the Bill, of Section 6 of the Party Wall etc. Act 1996, which relates to adjacent excavations for construction. In a minute I shall come up with an example which I fear rather indicates that this is not working at the moment.

High Speed Rail (West Midlands-Crewe) Bill

Debate between Lord Berkeley and Earl of Lytton

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords & Committee: 2nd sitting : House of Lords & Committee: 2nd sitting
Thursday 12th November 2020 Grand Committee

[Lord Berkeley (Lab)]

My Lords, the amendment is in my name and that of the noble Earl, Lord Lytton. On our previous day in Committee, we discussed regular reporting and had a good debate. This amendment is slightly different, because the emphasis is on independent peer review. I remind noble Lords that this project has been around, discussed in another Parliament, for probably 10 years and things have moved on. We have learned a lot. There have been changes, which we all know about. It is probably time for Parliament to commission an independent review so that it knows what has been asked for, what will be built, how much it is going to cost and so on. In particular, we have had a lot of debate both on the Floor of the House and in the Select Committees on the environmental impact, costs, forecast revenue before and after Covid—well, not after yet—the economic impact, the engineering and the governance.

I do not wish to express any opinion on whether what we have now is good or bad. What is needed is an independent opinion—independent of government, of HS2 and of the various contractors. The experience in the Oakervee review last year was that when we tried to seek independent opinions on whatever we were looking at under the terms of reference, we found it quite difficult to identify people or organisations that were not or had not been in some way linked to HS2 or the Department for Transport. I am not being critical, but it is pretty important if one wants an independent review that those conducting it are independent and not worried about where the next contract will come from, for example.

I shall not say much more except to remind noble Lords that probably one of the most important things that I am focused on is costs. There have been three or four times when Department for Transport officials or HS2 staff have basically said that they do not know what the costs are. One HS2 executive, when asked why they had not been transparent on costs, memorably replied:

“If we’d told Parliament the real costs, they’d probably have cancelled the project.”


That is a very bad reason for going ahead with a project. I know that my noble friend Lord Adonis will say that I am trying to get it stopped, which I am not; I just think that it is time now to get a one-off, independent review so that Parliament and other people can then monitor progress and hold the Government and HS2 to account if they feel it necessary. I beg to move.

[The Earl of Lytton (CB) [V]]

My Lords, I do not have much to add to what the noble Lord, Lord Berkeley, so ably said, and the amendment is largely self-explanatory. It will become apparent as further amendments are moved that there is a strong case for an amendment such as this, which is why I added my name to it.

For all the many pages written on matters of safeguards, it seems that few outside the cerebral world of the department, HS2 and its contractors are entirely convinced that HS2 Ltd will honour the spirit as opposed to the letter as it sees it. Too much of this Bill appears to rest on HS2 Ltd’s self-assessment, in which the Government as ultimate funder and promoter are a party. Costs have soared, as we have heard. Budgets for things such as land acquisitions seem to have been woefully inadequate. Timelines have become stretched; procedures have been subject to novel interpretations, and a good deal of unnecessary uncertainty and doubt about aspects of the scheme have crept in as far as those outside but affected by the scheme are concerned.

This is a scheme by the nation for the nation, and it should embed best practice and be seen to be doing so. I am pleased to support the amendment because it goes to the heart of public confidence in the manner in which this truly mighty project is being managed.